Introduction to the Legislation on Industrial Emissions ...

INTRODUCTION TO THE LEGISLATION ON INDUSTRIAL EMISSIONS AND ACCIDENTS

Valerie Fogleman, Consultant, Stevens & Bolton LLPProfessor of Law, Cardiff University School of Law and Politic

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TOPICS

• Industrial Emissions Directiveo Directive 2010/75/EU

• Medium Combustion Plants Directiveo Directive (EU) 2015/2193

• Mercury Regulation o Regulation (EU) 2017/852

• Seveso III Directiveo Directive 2012/18/EU

The Medium Combustion Directive is almost like a daughter of the IED. But the Mercury Regulation and the Seveso III Directive, all different.

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INDUSTRIAL EMISSIONS DIRECTIVE

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• Backgroundo Council Directive 96/61/EC concerning integrated pollution prevention and control

‒ Codified in Directive 2008/1/EC concerning integrated pollution prevention and control (IPPC Directive)

▪ Introduced an integrated system of industrial permitting that covered a wide range of installations

carrying out activities related to various industries

o Some Member States already had pollution prevention and control systems

‒ E.g., France: Installations Classées pour la Protection de l'Environnement (ICPE) since 1976

This was not new. Some countries already had legislation to this regard back then (eg, France and UK)I covers both emissions into water and into air, and other environmental means such as land.

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• Background (continued)o IPPC Directive

‒ Integrated approach

▪ Differs from legislation that controls emissions to specific environmental media

• E.g. water and air

▪ Intent was to prevent operators transferring emissions of pollutants from one environmental media

or industry to another

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• Background (continued)o IPPC Directive (continued)

‒ Operator of an ‘installation’ or a ‘mobile plant’ required to use ‘best available techniques’ (BAT)

▪ ‘the most effective and advanced stage in the development of activities and their methods of

operation which indicate the practical suitability of particular techniques for providing in principle

the basis for emission limit values [ELVs] designed to prevent and, where that is not practicable,

generally to reduce emissions and the impact on the environment as a whole’

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The BAT look at:Cost – technologyLife-cycle of an installation

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• Background (continued)o IPPC Directive (continued)

‒ Flexibility

▪ Competent authority to take the following into account in determining the conditions of a permit

• Technical characteristics of the installation

• Geographical location

• Local environmental conditions

‒ Public participation

▪ Added by amendment to previous IPPC Directive by Directive 2003/4/EC on public access to

environmental information

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• Industrial Emissions Directive (IED)o Recast the following seven Directives

‒ IPPC Directive

‒ Directive 2001/80/EC on the limitation of certain pollutants into the air from large combustion plants

‒ Directive 2000/76/EC on the incineration of waste

‒ Council Directive 1999/13/EC on the limitation of emissions of volatile organic compounds due to the

use of organic solvents in certain activities and installations

‒ Council Directive 78/176/EEC on waste from the titanium dioxide industry

‒ Council Directive 82/883/EEC on procedures for the surveillance and monitoring of environments

concerned by waste from the titanium dioxide industry

‒ Council Directive 92/112/EEC on procedures for harmonising the programmes for the reduction and

eventual elimination of pollution caused by waste from the titanium dioxide industry

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• Timetable o 6 January 2011: entered into force

o 7 January 2013: applied to new installations

o 7 January 2014: applied to installations formerly subject to IPPC except large combustion plants

o 7 January 2015: applied to installations subject to IED that were not subject to IPPC

o 7 January 2016: applied to large combustion plants in existence before 6 January 2013

o 30 June 2020: derogation for some installations such as oil refineries and coal-fired power stations if

derogation approved by European Commission

Because adapting and dealing with all of the installations at once would not be feasible, neither for the industry nor for the governments.

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• IED has many additional features to IPPC Directive includingo More stringent ELVs

‒ Sulphur dioxide

‒ Nitrogen oxides

‒ Dust

o Extended IPPC requirements to more industrial sectors

‒ More waste treatment activities

‒ Wood preservation activities

‒ Independently operated wastewater treatment works

o Stricter controls on monitoring soil and groundwater and remediation of contamination

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• Scope o Integrated approach

‒ Emissions from polluting process

‒ Energy efficiency

‒ Generation of noise and vibrations

‒ Consumption of raw materials

‒ Prevention of accidents

‒ Minimising waste generation and/or use of waste recovery

‒ Remediation of land/soil and groundwater contaminated during the pendency of a permit

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• Approximately 52,000 installations that carry out industrial activities listed in annex I must have a permit to operate o Industries in annex I

‒ Energy industries

‒ Production and processing of metals

‒ Mineral industry

‒ Chemical industry

‒ Waste management

‒ Other activities

o Note: ICPE applies to over 500,000 installations at different levels

‒ Declarations, registrations, and authorisations/permits depending on degree of risk to human health

and the environment

So, the national schemes apply a lot broader.

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• Annex Io Types of industries under category for energy industries

‒ 1.1. Combustion of fuels in installations with a total rated thermal input of 50 MW or more

‒ 1.2. Refining of mineral oil and gas

‒ 1.3. Production of coke

‒ 1.4. Gasification or liquefaction of

▪ (a) coal

▪ (b) other fuels in installations with a total rated thermal input of 20 MW or more

It is just na example to show how the IED, in annex I, breaks down the categories.

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• Best Available Techniques (BAT) cover industrial activities listed in annex I of the IEDo Annex III sets out the following criteria to be given special consideration in the exchange of information

in determining BAT, BAT conclusions, and any emerging techniques

1. the use of low-waste technology

2. the use of less hazardous substances

3. the furthering of recovery and recycling of substances generated and used in the process and of waste,

where appropriate

4. comparable processes, facilities or methods of operation which have been tried with success on an

industrial scale

5. technological advances and changes in scientific knowledge and understanding

6. the nature, effects and volume of the emissions concerned

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• Annex III criteria (continued)7. the commissioning dates for new or existing installations

8. the length of time needed to introduce the best available technique

9. the consumption and nature of raw materials (including water) used in the process and energy efficiency

10. the need to prevent or reduce to a minimum the overall impact of the emissions on the environment and

the risks to it

11. the need to prevent accidents and to minimise the consequences for the environment

12. information published by public international organisations

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• Best Available Technique (BAT) Reference Documents (BREFs)o Produced for industrial activities listed in annex I

o Member States must take BREFs into account when they determine BATs generally or specifically

o Permit conditions and ELVs are based on BREFs

‒ ELVs must not exceed emission levels associated with the best available techniques described in BREFs

o Over 30 BREFs have been published

‒ Examples

▪ 2012: glass manufacturing, iron and steel

▪ 2014: pump and paper, refineries

▪ 2017: poultry and pigs, large combustion plants, large volume organic chemicals

o Constant review process to take account of technological developments

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• Best Available Technique (BAT) Reference Documents (BREFs)o Sevilla Process

‒ BREFs issued by technical working groups consisting of IPPC Bureau and experts from Member States,

industry and NGOs

‒ Each BREF includes BAT conclusions

▪ Description of each conclusion

▪ Assessment of the appropriate application

▪ ELVs associated with BAT

▪ Associated monitoring

▪ Associated levels of consumption

▪ Relevant site remediation measures, as appropriate

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• Application of BREFs o New installation for which there are new BAT conclusions

‒ Permit conditions including the new BAT conclusions apply before operations can begin

o Existing installation for which there are new BAT conclusions

‒ Permit conditions are reconsidered and, where necessary, updated

‒ Reconsideration takes account of any new or updated BAT conclusions applicable to the installation that

have been adopted since the permit was granted or renewed

‒ Any new conditions must be incorporated as permit conditions within four years after adoption of a

BAT conclusion

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• Environmental inspection of installationso Each Member State must establish a system of environmental inspections and inspection plans

o Plans must be regularly reviewed and updated

o Competent authorities must regularly establish programmes for routine environmental inspections

including the frequency of site visits for different types of installations

o Competent authorities must visit each installation that poses the highest risks at least once a year and

each installation that poses the lowest risks at least once every three years

o Determination of the degree of risks is based on a systematic appraisal of the environmental risks of the

installation

o Report is published following an inspection to describe relevant findings regarding compliance with

permit conditions and whether any further action is necessary

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• Environmental inspection of installations (continued)o Non-routine environmental inspections to investigate serious environmental complaints and

environmental accidents, incidents and occurrences of non-compliance as soon as possible and, where

appropriate, before the granting, reconsideration or update of a permit

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• Public participationo Public has the right to participate in implementation of the IED by having access to

‒ Permit applications – public may submit comments

‒ Permits

‒ Results of the monitoring of releases

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• European Pollutant Release and Transfer Register (E-PRTR)o Public register of emissions data reported by Member States

o Over 30,000 installations in 27 Member States, Iceland, Liechtenstein, Norway, Serbia, and Switzerland

submit reports

o Covers 65 economic activities in following sectors

‒ Energy

‒ Metals production and processing

‒ Mineral industry

‒ Chemical industry

o Covers over 90 pollutants including greenhouse gases, other gases, heavy metals, pesticides, chlorinated

organic substances, other organic substances and inorganic substances

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• Preventing and remediating pollution from accidents o Applicant for a permit must, among other things, examine and describe measures to operate the

installation so as not to cause any significant pollution, take the necessary measures to prevent accidents

and limit their consequences, and avoid the risk of pollution

o Application of BAT to prevent, reduce and as far as possible eliminate pollution from emissions so as to

achieve a high level of protection of the environment

o Preparation, as applicable, of a baseline report to assess the state of soil and groundwater pollution by

relevant substances when a permit is granted

o Preparation of a further report when the permit is surrendered and, if pollution has occurred, restore

the site of the installation to a ‘satisfactory state’, that is, its state when the permit was granted

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• Preventing and remediating pollution from accidents (continued)o Specifically applies to major environmental accidents

‒ ‘Without prejudice to [the ELD], in the event of any incident or accident significantly affecting the

environment, Member States shall take the necessary measures to ensure that:

a) the operator informs the competent authority immediately;

b) the operator immediately takes the measures to limit the environmental consequences and to

prevent further possible incidents or accidents;

c) the competent authority requires the operator to take any appropriate complementary measures

that the competent authority considers necessary to limit the environmental consequences and to

prevent further possible incidents or accidents’

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MEDIUM COMBUSTION PLANTS DIRECTIVE

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• What is a medium combustion plant?o Combustion plant between 1 and 50 MegaWatt net rated thermal input (MW) regardless of the type of

fuel used by them

‒ Technical apparatus in which fuels are oxidised in order to use the heat generated by them

o Examples: electricity generation plants, domestic/residential heating and cooling such as heaters and

boilers, plants that provide heat or steam for industrial processes

o Many exemptions including plants used on offshore platforms, to propel a vehicle, ship or aircraft, etc.

• Background

o Purpose: improvement of air quality

‒ Medium combustion plants are a significant source of air pollution, many of which were not regulated

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• Fills the regulatory gap betweeno Large combustion plants covered by the IED

‒ Combustion plants greater than 50 MW

o Small combustion plants covered by the Ecodesign Directive (2009/125/EC)

‒ Combustion plants up to 500 kW

▪ Ecodesign requirements for energy-related products

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• Applies to approximately 143,000 medium combustion plants• Registration or, in certain cases, permits

• Permits include ELVs for sulphur dioxide, nitrogen oxides and dust• Registrations and permits both require emissions to be monitored within four months

of registration or grant of a permit followed by

o 20 – 50 MW plants: annual monitoring for above pollutants and carbon monoxide

o 1 – 20 MW plants: annual monitoring of same once every three years

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• Timetable o 29 December 2017: deadline for transposition

o 20 December 2018: registration or permit for new plants (plants put into operation on or after 20

December 2018)

‒ Compliance with permit required by above date or from the date that the permit was issued

o 1 January 2024: registration or permit for existing plants with capacity between 5 MW and 50 MW

‒ 1 January 2025: compliance with ELVs in a permit

o 1 January 2029: registration or permit for existing plants with a capacity between 1 MW and less than 5

MW

‒ 1 January 2030: compliance with ELVs in a permit

o Note: an existing plant can become a new plant if it is substantially refurbished, i.e., costs exceed 50% of

the investment cost for a new comparable medium combustion plan

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MERCURY REGULATION

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MERCURY REGULATION

• Background o 1908, Chisso Corporation began operating a chemical factory in Kumamoto, a small town about 570

miles (918 kilometres) southwest of Tokyo

‒ Chisso was the main employer

‒ Most other residents of the town were farmers and fishermen

o 1932: Chisso began production of acetaldehyde

‒ Chemical reaction used to produce it used mercury sulphate as a catalyst

‒ Side effect of process was the production of a small amount of methyl mercury, an organic mercury

compound

o 1932 to 1968: discharged waste products into Minamata Bay; production method then discontinued

o 1956: children began to get sick, had difficulties walking due to numbness in limbs, slurred speech,

constricted vision and convulsions due to disease of central nervous system

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MERCURY REGULATION

• Background (continued)o Animals had had convulsions for some time, especially cats and birds

o July 1959: researchers from Kumamoto University concluded that organic mercury was the cause of

‘Minamata Disease’

o 1959: fishermen began protests and demanded compensation

o Chisso began settling claims

o 1974: 798 victims of Minamata Disease had been recognised with about 3,000 more awaiting verification

from government doctors

o By March 2001, over 10,000 people had received compensation from Chisso

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MERCURY REGULATION

• Minamata Convention on Mercuryo 2009: Governing Council of United Nations Environment Programme (UNEP) adopted Decision 25/5 on

the development of a global legally binding instrument on mercury

o January 2013: 140 States adopted UNEP treaty on mercury (Minamata Convention on Mercury)

o Aim: reduce production and use of mercury in manufacturing products and industrial processes, and

regulate storage conditions and waste disposal

o October 2013: opened for signature in Minamata

o Ratification: 50 States needed

o 16 August 2017: Convention came into effect after ratification by the EU, Bulgaria, Denmark, Hungary,

Malta, the Netherlands, Romania and Sweden on 18 May 2017 brought the number of ratifications to 52

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MERCURY REGULATION

• Mercury Regulationo Prohibits imports and exports of mercury and mercury compounds between the EU and third countries

o Prohibits the manufacture, export and import of a large range of mercury-added products

o Ends all uses of mercury catalysts and large electrodes in industrial processes

o Reduces the use of and pollution from dental amalgam and sets out a process to assess whether a

complete phase out of the use of mercury in dentistry is feasible

o Prevents the creation of new mercury-added products or new manufacturing processes that include

mercury

o Ensures the safe disposal of mercury waste

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MERCURY REGULATION

• Uses of mercuryo Was formerly used in batteries, thermometers, barometers, blood pressure monitors, electronic

equipment, lamps, pesticides, biocides, topic antiseptics, etc.

• Exposure to mercuryo Mercury is mostly present in the air

o Large amounts are also present in waters, especially seas and oceans

‒ Bio-accumulative

o Can affect the nervous, cardiovascular, immune and reproductive systems including permanent brain and

kidney damage

o Especially harmful to children in whom it can affect brain development

o Mercury also transfers across the placenta to affect development of unborn children

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MERCURY REGULATION

• Dental amalgamo Dental fillings are an alloy of mercury and other metals such as silver, tin and copper

o Was the largest use of mercury in the EU

o 1 July 2018: use was prohibited for dental treatment of deciduous teeth, children under 15 years and

pregnant or breastfeeding women, unless deemed strictly necessary by the relevant dental practitioner

on the grounds of specific medical needs

o 1 July 2019: each Member State was required to set out and publish on the internet a national plan on

measures to phase out the use of dental amalgam

o 1 January 2019: dental practitioners were no longer allowed to use dental amalgam in bulk, but only in

pre-dosed encapsulated form, in order to prevent exposure of the patient and dental practitioners

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MERCURY REGULATION

• Dental amalgam (continued)o 1 January 2019: all dental facilities dealing with dental amalgam (use of amalgam and/or removing

dental amalgam fillings) were required to have amalgam separators to ensure the retention and

collection of amalgam particles in order to prevent their release into wastewater systems

‒ Separators are required to maintain a minimum retention level of 95%

▪ Immediately for new separators

▪ By 1 January 2021 for existing separators

o Dental practitioners must ensure that amalgam waste is handled and collected by authorised persons to

prevent its direct or indirect release into the environment

o 30 June 2020: Commission directed to report on the feasibility of phasing out the use of dental amalgam

in the long term, preferably by 2030, and also present, if deemed appropriate, a legislative proposal

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MERCURY REGULATION

• 17 August 2020: Commission adopted the report (COM(2020) 378 final)o Concluded that phasing out dental amalgam before 2030 is technically and economically feasible

o Stated that it will present a legislative proposal to the European Parliament and the Council in 2022 to

phase it out

o EU will also

‒ Actively participate in international negotiations to extend the list of mercury-added products

regulated under the Minamata Convention

‒ Assess the need to prohibit manufacture and export of specified mercury-added products on the

market in the EU by amending annex II of the Mercury Regulation

▪ Lists mercury-added products together with the date from which their export, import and

manufacturing are prohibited

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SEVESO III DIRECTIVE

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• Background ‒ 1976: containers at a small chemical facility for pesticides and herbicides ruptured, causing

approximately six metric tonnes of gas containing dioxin, which is highly carcinogenic, to be released

‒ Gas drifted over town of Seveso (population 17,000) and other nearby small towns

‒ Over 37,000 people were exposed to high levels of dioxin

▪ Subsequently experienced blurred vision, nausea, skin inflammation, and severe chloracne

▪ Symptoms did not appear immediately

‒ Release of gas was not made public for several days

‒ Evacuation was therefore delayed

‒ Over 3,300 animals were subsequently found dead or slaughtered

‒ Children born to women exposed to dioxin were subsequently found more likely to have altered thyroid

function than other children

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• Directive 82/501/EEC on the major-accident hazardous of certain industrial activities• Amended by Seveso II Directive 96/82/EC on the control of major-accident hazardous

involving dangerous substances

o Amendments took into account disasters at Bhopal (1984), Enschede (2000), and Toulouse (2001)

• Amended by Seveso III Directive 2912/18/EU on the control of major-accident hazards involving dangerous substances

o Amendments took into account changes in EU legislation on the classification of chemicals and public

participation

o Recitals refer to disasters at Seveso, Bhopal, Schweizerhalle (1986), Enschede, Toulouse and Buncefield

(2005)

It is called Seveso III because it is the third version of the Directive. It has been amended taking into account the major disasters mentioned here.

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• Scopeo Applies to over 12,000 establishments at which dangerous substances are stored, mainly petro-chemical

establishments

o Divided into lower tier and upper tier depending on amount and type of dangerous substances stored at

an establishment

• Objectives

o Lays down rules for the prevention of major accidents that involve dangerous substances, and the

limitation of their consequences for human health and the environment, with a view to ensuring a high

level of protection throughout the EU in a consistent and effective manner

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• Lower tier and upper tier establishmentso Identify dangerous substances and categories of them

o Prepare a major accident prevention policy (MAPP) ‘to ensure a high level of protection of human health

and the environment’, proportionate to the risks involved including the operator’s overall aims and

principles of action

o Implement the MAPP including taking all measures to prevent major accidents and, if an accident occurs,

to limit its consequences for human health and the environment

o Notify relevant authorities

And also, to let the public know about those information.

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• Upper tiero Identify and evaluate major hazards, their possible consequences, and prevention and control measures

o Prepare a safety report to demonstrate that a MAPP has been prepared and put into effect

o Submit the safety report to relevant competent authorities

o Safety report must show the existence of a safety management system and must include internal and

external emergency plans

o All employees should be aware of the potential for major accidents and be trained to prevent them

o Test emergency plan by regular exercises and other appropriate means

o Review safety report periodically for effectiveness and suitability

o Public participation

o Provide information on safety measures and applicable behaviour to persons that may be affected by a

major accident

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• ‘Major accident’o ‘an occurrence such as a major emission, fire, or explosion resulting from uncontrolled developments in

the course of the operation of any establishment covered by [the Directive], and leading to serious

danger to human health or the environment, immediate or delayed, inside or outside the establishment,

and involving one or more dangerous substances’

• Approximately 30 major accidents each year in the EU

She does not have a concluding slide because it is not really possible to summarize those four pieces of legislation.

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Introduction to the Legislation on Industrial Emissions ...

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